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Horicianu v. Doe

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK


September 27, 2010

FLORIN HORICIANU, PRO SE, PLAINTIFF,
v.
J. DOE 1 AKA NOYESMELISSA; US 880; J. DOE 2 AKA SHERRY; J. DOE 3 AKA ANDREI LUCA, AKA DIANA, AKA WOMENS SNICKERS; J. DOE 4 AKA STUART; J. DOE 5 - 30, DEFENDANTS.

The opinion of the court was delivered by: Dora L. Irizarry United States District Judge

SUMMARY ORDER

DORA L. IRIZARRY, United States District Judge

Plaintiff Florin Horicianu brings this action pro se alleging that "defendants have posted bizarre defamations about the [p]laintiff, on public (Internet) websites, and used those postings to attract customers to buy their counterfeit merchandise; therefore, the [d]efendants profited from those defamations." (Compl. at 2-3.) Plaintiff seeks $2 million in monetary damages and injunctive relief. (Compl. at 3.) The court grants plaintiff's request to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a). However, issuance of a summons and service of the complaint are held in abeyance because plaintiff is granted thirty (30) days from the date of this Order, i.e., by October 27, 2010, to file an amended complaint, as discussed below. For the convenience of plaintiff, and in light of his pro se status, instructions on how to amend a complaint are attached to this Order. Should the amended complaint fail to correct the deficiencies of the instant complaint, this action will be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B).

STANDARD OF REVIEW

In reviewing the instant complaint, the court is mindful that, "a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 94 (2007). Under 28 U.S.C. § 1915 (e)(2)(B), a district court shall dismiss an in forma pauperis action where it is satisfied that the action "(i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief." An action is deemed frivolous as a mater of law when, inter alia, it "lacks an arguable basis in law, or a dispositive defense clearly exists on the face of the complaint." Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998). Moreover, a plaintiff seeking to bring a lawsuit in federal court must establish that the court has subject matter jurisdiction over the action. See Rene v. Citibank NA, 32 F. Supp. 2d 539, 541-42 (E.D.N.Y. 1999).

DISCUSSION

The subject matter jurisdiction of the federal courts is limited and the basic statutory grants of federal court subject matter jurisdiction are contained in 28 U.S.C. §§ 1331 and 1332. Arbaugh v. Y & H Corp., 546 U.S. 500, 126 S.Ct. 1235, 1244 (2006). Section 1331 provides for federal question jurisdiction, and § 1332 for diversity of citizenship jurisdiction. Id. A plaintiff properly invokes § 1332 jurisdiction when he presents a claim between parties of diverse citizenship that exceeds the required jurisdictional amount, currently $75,000. Id. (citing § 1332(a)). Here, plaintiff does not establish that this court has diversity jurisdiction over his complaint. Plaintiff states that defendant US880 is located in China, but does not state where the other named defendants reside. Moreover, plaintiff has not established his "burden of proving that it appears to a 'reasonable probability' that the claim is in excess of the statutory jurisdictional amount." Chase Manhattan Bank, N.A. v. Am. Nat'l Bank and Trust Co. of Chicago, 93 F.3d 1064, 1070 (2d Cir. 1996) (quoting Tongkook Am., Inc. v. Shipton Sportswear Co., 14 F.3d 781, 784 (2d Cir. 1994)). Although plaintiff seeks $1 million in compensatory damages and $1 million in punitive damages, it appears that plaintiff's request for damages is not based on an actual, non-speculative damages amount. However, the court notes that "[b]efore determining that the amount in controversy requirement has not been met, the court must afford plaintiff the opportunity to show good faith in believing that a recovery in excess of [$75,000] is reasonably possible." Id.

Moreover, the Supreme Court has held that "[i]n the absence of diversity of citizenship, it is essential to jurisdiction that a substantial federal question should be presented." Hagans v. Lavine, 415 U.S. 528, 537 (1974) (quoting Ex parte Poresky, 290 U.S. 30, 31-32 (1933)). "A plaintiff properly invokes § 1331 jurisdiction when [he] pleads a colorable claim 'arising under' the Constitution or laws of the United States." Arbaugh, 126 S.Ct. at 1244 (citing Bell v. Hood, 327 U.S. 678, 681-85 (1946)). A claim invoking federal question jurisdiction, however, "may be dismissed for want of subject-matter jurisdiction if it is not colorable, i.e., if it is 'immaterial and made solely for the purpose of obtaining jurisdiction' or is 'wholly insubstantial and frivolous.'" Id. at 1244 n. 10 (quoting Bell, 327 U.S. at 682-83).

Here, plaintiff brings a state law claim for defamation and does not allege any federal claim against defendants. See Sadallah v. City of Utica, 383 F.3d 34, 38 (2d Cir. 2004) ("defamation . . . is an issue of state law, not of federal constitutional law"). Even liberally construing plaintiff's complaint, any attempt plaintiff could make to re-cloak or convert his defamation claims into a constitutional right or federal question would be unavailing. Anderson v. Bowen, 881 F.2d 1, 5 n.10 (2d Cir. 1989).

CONCLUSION

While the instant complaint fails to set forth subject matter jurisdiction, and could be dismissed at this juncture, in an abundance of caution, plaintiff is granted thirty (30) days from the date of this Order, i.e., by October 27, 2010, to file an amended complaint. Should plaintiff elect to file an amended complaint, plaintiff is directed to provide the residences of all defendants and to demonstrate a good faith basis for satisfying the amount in controversy requirement of 28 U.S.C. § 1332. Plaintiff must also comply with Rule 8 of the Federal Rules of Civil Procedure.

Plaintiff is advised that any amended complaint he files will completely replace the original complaint. The amended complaint must be captioned, "Amended Complaint," and shall bear the same docket number as this Order. For the convenience of plaintiff, and in light of his pro se status, instructions on how to amend a complaint are attached to this Order. If plaintiff fails to amend his complaint by October 27, 2010, as directed by this Order, and/or the amended complaint fails to correct the deficiencies of the instant complaint, the complaint will be dismissed. The issuance of a summons and service of the complaint are held in abeyance pending the filing of an amended complaint. The court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal would not be taken in good faith and therefore in forma pauperis status is denied for the purpose of any appeal. Coppedge v. United States, 369 U.S. 438, 444-45 (1962).

SO ORDERED.

20100927

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